March-April 2012, Page 30
By Grant F. Smith
During Feb. 14, 2012 oral arguments before a three-judge panel in the District of Columbia Court of Appeals, attorney David Shapiro argued passionately that the American Israel Public Affairs Committee (AIPAC) has a long history of obtaining and using classified U.S. government information. The fiery Shapiro clashed with AIPAC's legal team, headed by employment and labor law expert Thomas McCalley. The $20 million question before the judges was whether AIPAC defamed its former top lobbyist, Steven J. Rosen, after it fired him in 2005—but before Rosen, along with his colleague Keith Weissman, was indicted by the Department of Justice under the Espionage Act. AIPAC repeatedly told establishment media outlets that Rosen's "behavior did not comport with standards that AIPAC expects of its employees."
A lower court judge threw out Rosen's defamation suit in February of last year, ruling that the objective truth of the AIPAC statement was "not provably false…and not defamatory as a matter of law." This was wrong, argued Shapiro, since AIPAC "knew everything" Rosen did while lobbying the executive branch and had no standards about classified information.
Shapiro presented tantalizing glimpses into the still-murky circumstances surrounding Rosen's dismissal. In 2004 Rosen and Weissman passed what they thought was classified information to Washington Post reporter Glenn Kessler. It was all a sting. The pair were wiretapped by the FBI, which played select audio clips to AIPAC counsel Nathan Lewin. Lewin—who subsequently said he did not think Rosen had committed a crime—regretfully advised AIPAC to fire Rosen.
The Appeals Court judges repeatedly challenged Shapiro that employers have a right to dismiss employees who have been arrested or indicted. How could it possibly be defamatory to say that Rosen's actions didn't comport with AIPAC standards? Shapiro fired back, asserting it was defamatory because "AIPAC has no standards…any standards." Shapiro then listed reasons why, under Justice Department "Thompson Memorandum" corporate prosecution guidelines, AIPAC really fired and publicly chastised its employees: "They were investigating AIPAC, too." Shapiro reminded judges that AIPAC's offices had been raided twice by the FBI. AIPAC chose to fire and put Rosen "in a zone of danger," with a possible 20-year prison term, "to save itself." Serial insinuations about Rosen dispersed the massive cloud of suspicion gathering over AIPAC itself.
AIPAC "knew everything" Rosen did while lobbying the executive branch.
The staid and serene McCalley tried to steer the panel back into more comfortable technical and procedural terrain. Citing legal precedents, McCalley calmly argued that no "subjective" employer statement about an employee who has been indicted is actionable as defamation. Besides, he added, the statements cited in Rosen's lawsuit were mere repetitions of earlier statements, and therefore fell outside the applicable statute of limitations. AIPAC's statements about Rosen, a public figure, had to be judged by different standards.
Chief Judge Eric Washington seemed to warm to McCalley's arguments until Shapiro let loose an impassioned rebuttal. Shapiro argued that Rosen's standing in the Jewish community had been forever tainted by AIPAC and that he must be "allowed to present his case before a jury."
Judge John M. Ferren demonstrated his acute awareness of the connection between the criminal Espionage Act case—dropped by the Obama administration in 2009—and Rosen's near simultaneous defamation suit filing.
A public interest appeal has also now entered the fray. The day following the oral arguments, the court granted special permission for the Institute for Research: Middle Eastern Policy's motion to file an amicus brief. The 76-page brief, citing recently declassified State Department and FBI investigation files, argues that "AIPAC's observable standard for employees is 'solicit, obtain and leverage classified information without being criminally indicted.' AIPAC is never held publicly accountable for these types of activities which harm governance and public perception of rule of law." The full brief, and AIPAC's last ditch attempt to block it, is available online.
For AIPAC, the stakes could not be higher. If it becomes subject to paying off disgruntled former operatives who engaged in or witnessed illegal activity, the behemoth Israel lobby could go bankrupt. If, on the other hand, it quietly pays off Rosen, it will be seen as an admission of guilt.
The Appeals Court panel may well conclude that Rosen deserves another chance to argue that AIPAC had no right to fire him for activity that it has historically rewarded—as long as its operatives avoided indictment. Whatever the verdict, the overarching public interest question of why AIPAC itself has never been indicted for a string of illegal activities will likely continue to await a satisfactory answer. Unlike Rosen, concerned Americans had no standing to appeal the Justice Department's 2009 order to drop Espionage Act prosecutions, or power to redirect indictments toward the main perpetrator.
Grant F. Smith is director of the Washington, DC-based Institute for Research: Middle Eastern Policy. Legal briefs and declassified files referred to in his article may be browsed at the Israel Lobby Archive, <www.IRmep.org/ila/rosen>.